Criminal Justice And Immigration Bill

I attach the Government's response to the Committee's Fifth Report of Session 2007-2008 and those parts of the Committee's Fifteenth Report which deal with the Criminal Justice and Immigration Bill.

I am most grateful for the Committee's careful consideration of this Bill. As the attached response sets out, many of the amendments tabled by the Government during the passage of the Bill respond to the concerns expressed by the Committee.

Criminal Justice And Immigration Bill: Government Response to the Fifth and Fifteenth Reports from the Joint Committee On Human Rights: Session 2007-08

Reference to clause or Schedule numbers in the Bill are to the Bill as amended at Lords Report (unless otherwise stated) and ordered to be printed on 23 April 2008.

1.  We add our voice to the many Members who complained at Report stage that the House of Commons has been deprived of the opportunity to conduct, in the case of many clauses, any scrutiny at all of provisions which have serious implications for the rights and liberties of the citizen. (Paragraph 1.3: 5^th Report)

2.  The Bill had 47 hours in Committee in the Commons and a further 8 hours for remaining stages. While extra time was made available for Report, the Leader of the House of Commons acknowledged that this did not turn out to be enough and undertook to see whether extra time can be found to consider the amendments passed by the House of Lords. The Leader of the House of Commons has announced that there will be a full day for Commons Consideration of Lords Amendments on 6 May 2008.

3.  We urge the Government to exercise caution in this contentious area of policy [rebalancing the criminal justice system] and to proceed only on the basis of objective evidence. We ask the Government again to clarify their position on this issue. (Paragraph 1.7: 5^th Report)

4.  The purpose of the Bill is to protect the public, reduce re-offending, promote and improve access to justice and increase public confidence in the justice system. It remains the case that the Government is not asserting that there is an actual imbalance in the criminal justice system.

Youth Justice

5.  We welcome, in principle, the introduction of a generic community sentence for children and young offenders, because it has the potential to enhance the legal protection for the human rights of children and young people in the criminal justice system. Indeed, Article 40(4) of the UN Convention on the Rights of the Child ("the CRC") requires that a variety of dispositions shall be available "to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence." In particular, seeking to ensure that the requirements imposed in a community sentence are more closely tailored to the individual circumstances of the juvenile offender, which is said to be one of the main aims of this Part of the Bill, should help to make the requirements imposed on juvenile offenders more proportionate. (Paragraph 1.9: 5^th Report)

6.  The Government welcomes the Committee's support for the principle of the Youth Rehabilitation Order.

7.  We note the Government's statement that it strongly believes that custody for young people should only be used as a last resort. However, we note that in the Government's response to our predecessor Committee's recommendation, it said that "intensive supervision and surveillance would be the first option for courts, and custody would be available as a second option only where the offences were so serious that only a physical restriction of liberty could be justified." (Paragraph 1.16) As presently drafted, however, there is nothing in the Bill to require that a YRO with ISS be the first resort, before custody, other than in exceptionally serious cases.(Paragraph 1.16) In our view, such a requirement would be an important additional safeguard to ensure that custody of children is only used as a last resort. Moreover, such a safeguard is arguably necessary to counter the risk that a single community sentence may lead to a quicker escalation to custody if the order is breached. We recommend that the Bill be amended to require that a YRO with ISS should always be tried before custody, unless the offence is so exceptionally serious that a custodial sentence is necessary to protect the public. (Paragraph 1.17: 5^th Report)

8.  The Government considers that clause 1(4) of the Bill makes it clear that a youth rehabilitation order with intensive supervision and surveillance ("YRO with ISS") or intensive fostering should be used as a direct alternative to custody. Therefore, a custodial sentence should only be imposed on a child or young person where it is necessary to deal with serious offence(s) or persistent offending.

9.  However, in the light of the debates in Parliament and of the recommendation of the Committee, the Government considered that additional clarification would be helpful.

10.  There are already a number of legal constraints on the courts on the imposition of a custodial sentence on a person under 18. The most important is that contained in section 152(2) of the Criminal Justice Act 2003 which states that:

"The court must not pass a custodial unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence".

11.  As the Committee pointed out in its 5^th Report, however, this custody threshold applies to all offenders - to adults as well as juveniles. At Report stage, the Lords agreed Government amendments which supplemented this duty (see now paragraph 80 of Schedule 4 to the Bill).

12.  At present, under section 174 of the Criminal Justice Act 2003, the courts are under a duty to make a statement giving its reasons for, and explaining the effect of, a sentence. In particular, where custody is imposed, it must say it is of the opinion that section 152(2) of the Criminal Justice Act 2003 applies and why it is of that opinion. The amendment made to the Bill imposes an additional requirement on the court, where the offender is under 18 years of age and the court imposes a custodial sentence, to make a statement that it is of the opinion that a sentence of a YRO with ISS or intensive fostering cannot be justified and why it is of that opinion.

13.  The Government's response to our inquiry has confirmed our concern that the Bill lacks adequate safeguards to ensure that the use of custody is proportionate, not only to the offence, but to the child's age and intellectual and emotional maturity, as required by the CRC. The Government's emphasis on robust enforcement for wilful and persistent breaches of a YRO, coupled with its assertion that it "needs to maintain confidence in community sentences" appears to us to give rise to a considerable risk that young people will be accelerated into custody not because of the seriousness of their offence but because of their persistent failure to comply with the terms of their community sentences. We recommend that the Bill be amended to include an explicit reference to the requirement of the CRC that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence. (Paragraph 1.21: 5^th Report)

14.  Issues of proportionality in respect of sentencing a young person are already taken into account by the courts. Proportionality is embedded in the criminal justice system and does not need to be set out for a specific sentence. The courts are required to ensure that each sentence, including sentences for breach, they make is a proportionate response to the needs of the offender and the seriousness of the crime. In particular, the courts are required before reaching a decision on the appropriate penalty to consider the offender's personal mitigation. This should always include consideration of the offender's age and maturity. Not only will the courts take such factors into account but the Court of Appeal in R v Howells [1999] 1 AER 50 stated that youth and immaturity, while offering no defence, will often justify a less rigorous penalty than would be appropriate for an adult.

15.  In respect of a community sentence, section 148(2) of the Criminal Justice Act 2003 (as it would be amended by Schedule 4 to the Bill) provides that where a court passes a community sentence which consists of or includes one or more youth community orders—

"the particular requirement or requirements forming part of the ….youth rehabilitation order, comprised in the sentence must be such as, in the opinion of the court, is, or taken together are, the most suitable for the offender".

16.  The Youth Offending Team will also take into consideration the age and maturity of the young person when undertaking assessment of their needs and making recommendations to the court on appropriate interventions - for instance, where a pre-sentence report is provided. The type and number of requirements and their length will be tailored to meet the individual's needs and to a large extent these will reflect their age and maturity. The court will, of course, have regard to Youth Offending Team reports and recommendations as part of the sentencing process.

17.  Finally, clause 9 of the Bill sets out the purposes of sentencing and other factors which the courts must take into account when sentencing. There is a requirement for the court to have regard to the welfare of the young person, this applies to both sentencing for the original offence and when re-sentencing following breach of a YRO. The court will always consider all of the circumstances of a young person when passing sentence, including any aggravating and mitigating circumstances. The Government is therefore in no doubt that the need to ensure proportionality in sentencing, taking into account the age and maturity of the offender, is already a key part of the sentencing process.

18.  We are surprised to learn that there is not a presumption that children are entitled to publicly funded legal representation in criminal proceedings, given the seriousness of the consequences for them and the complex and intimidating nature of those proceedings for the child. We recommend that the Government amend the Bill to provide for a general right of legal representation for children in criminal proceedings. (Paragraph 1.24: 5^th Report)

19.  Under the Access to Justice Act 1999, legal representation is available to anyone facing criminal proceedings before any court where it is in the Interests of Justice that public funding be granted. The 'Interests of Justice' test is set out in Schedule 3 to the Access to Justice Act 1999. The court must consider the following factors:

a.  whether the individual would, if any matter arising in the proceedings is decided against him, be likely to lose his liberty or livelihood or suffer serious damage to his reputation;

b.  whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law;

c.  whether the individual may be unable to understand the proceedings or to state his own case;

d.  whether the proceedings may involve the tracing, interviewing or expert cross examination of witnesses on behalf of the individual; and,

e.  whether it is in the interests of another person that the individual be represented.

20.  For those defendants under 18 years of age, it may be the case that such young people will be considered unable to follow proceedings and so will be held to satisfy the 'Interests of Justice' test on this element of the test alone. This point is reinforced by guidance on the Legal Services Commission's website which makes clear that the young age of the defendant can be considered by the court in determining whether the defendant is able to understand proceedings or able to state their own case.

21.  Whilst a likely custodial sentence would be sufficient to meet the 'Interests of Justice' test on the grounds of a loss of liberty, there is nothing to prevent the court from taking into account the serious nature of a non-custodial sentence, such as a Youth Rehabilitation Order, when considering whether it is in the 'Interests of Justice' to grant a representation order. As with all legal aid applications, the 'Interests of Justice' test will be assessed on the basis of the individual circumstances in each case.

22.  Since 2 October 2006, defendants appearing before the magistrates' court and youth court have also been required to pass a financial eligibility test to qualify for publicly funded representation. Defendants under the age of 16 and those under the age of 18 and in full time education were exempt from this test. From 1 November 2007, this exemption was extended to all defendants under the age of 18 .

23.  It would be extremely rare for a youth not to pass the "Interests of Justice" test, not least because court staff could take the view that the youth may well not understand proceedings and would be unable to state their own case. Therefore in the overwhelming majority of cases, under 18s will qualify for legal representation at court especially where any defendant appears at the Crown Court. Where an older youth is charged with a relatively minor/low level crime and they are familiar with the court process, they might be held not to satisfy the 'Interests of Justice' test. But this is likely to be very rare.

24.  In cases where a young person under 18 does not apply for legal aid before their appearance in court, the court duty solicitor can in many cases provide advice and representation to the youth concerned, so providing an additional safeguard.

25.  The Government believes that the current arrangements provide young people, particularly the most vulnerable, with appropriate and proper access to legal representation. However, the Government remains of the view that it is right that we ask, in each individual case, whether it is in the "Interests of Justice" that a representation order be granted.

Sentencing

26.  We recognise that the obligation in the CRC is to ensure that the best interests of the child are a primary consideration in all decisions affecting children, not the sole primary consideration. In our view, however, the effect of clause 9 of the Bill is to subordinate the best interests of the child to the status of a secondary consideration below the primary consideration of crime prevention. To treat the welfare of the child as a mere "supporting factor" is not, in our view, to treat it as a primary consideration. We recommend that the Bill be amended to delete the provision which subjects the duty to have regard to the welfare of the child to the primary duty to have regard to the principal aim of the youth justice system. We also recommend that the Bill be amended to make explicit that the sentencing court is required to have regard to the welfare of the child "as a primary consideration," as required by the CRC. (Paragraph 1.28: 5^th Report)

27.  The Government welcomes the Committee's recognition that the best interests of the child are not the sole primary consideration. Indeed, as was made clear at Lords Report, the UN Working Group which drew up the CRC specifically considered whether the best interests of the child should be "the" primary consideration but rejected that because:

"It was generally noted that there were situations in which the competing interests, inter alia, of justice and of the society at large should be of at least equal, if not greater, importance than the interests of the child".

28.  That is why the Working Group adopted the phrase "a primary consideration" which is incorporate in Article 3 of the CRC.[18]

29.  However, the Government recognised that that there had been concerns that the version clause 9 as it appeared in the Bill on Introduction subordinated, or appeared to subordinate, the welfare of the child to the status of a secondary consideration. The use of the words "a supporting factor" may have led to this.

30.  The Government therefore acknowledged that the provision needed further clarification. That is why the Government tabled an amendment, which was agreed at Lords Report which removed the perceived hierarchy within the purpose of sentencing for under 18s. The amendments ensure that the court gives equal weight to all of these considerations. This shows that welfare is a primary consideration for the court to have regard to when sentencing.

31.  The clause now states that when sentencing an offender under 18 the court must have regard to -

a.  the principal aim of the youth justice system;

b.  the welfare of the young person in accordance with section 44 of the Children and Young Persons Act 1933; and,

c.  the purposes of sentencing.

32.  The Government therefore considers that it is clear that the welfare of the child is now plainly a primary consideration.

Criminal Appeals

33.  We welcome the Government's willingness to amend the Bill, since its introduction, to acknowledge the important function of the appellate courts in upholding the rule of law by quashing convictions where there has been serious misconduct on the part of the State authorities. However, we still have two concerns about the new test for allowing criminal appeals. (Paragraph 1.31: 5^th Report)

34.  The first concern in relation to criminal appeals is whether the necessity for restricting the powers of the Court of Appeal in this way has really been made out by the Government. There is no clear evidence that the mischief the provision is aimed at is a problem in practice: the Court of Appeal has not interpreted its powers to mean that any procedural irregularity or technical defect renders a conviction unsafe. On the contrary, the Court of Appeal has generally taken a fairly robust, common sense attitude to its "safety" jurisdiction. (Paragraph 1.32: 5^th Report) Our second concern is that the clause appears to invite the Court of Appeal to set itself up as the arbiter of factual questions going to the guilt or innocence of the appellant, which is not the function of the Court of Appeal in criminal appeals. The role of the Court of Appeal is to review the safety of the conviction, and if it thinks that a conviction is unsafe it should quash a conviction and order a retrial. The new clause appears to restrict the ability of the Court of Appeal to do this. (Paragraph 1.33: 5^th Report)

35.  We therefore recommend that the Bill be amended to allow expressly for the reopening of criminal proceedings in appropriate cases following a finding by the European Court of Human Rights that there has been a breach of the right to a fair trial. We repeat our earlier observation that what is required is not an automatic right to have proceedings reopened following a finding of a violation of a Convention right by the Strasbourg Court, but a procedural mechanism for deciding whether proceedings should be reopened to review the safety of the conviction in the light of that judgment. We hope to propose an amendment to give effect to this recommendation in time for the Bill's Committee stage. (Paragraph 1.35: 5^th Report)

36.  On 27 February 2008, Lord Hunt of Kings Heath announced (Official Report, col. 658-660) that the Government was withdrawing the provisions relating to criminal appeals in clauses 42 and 43 (Lords Introduction print) in order to facilitate the speedy passage of the Bill so that the provision restoring the statutory prohibition on inducing prison officers to take industrial action can be in force by 8 May when the current voluntary industrial relations agreement between the Prison Service and the POA expires.

37.  The Government will consult further on the provision on quashing convictions and come back to them in a future Bill if appropriate.

Commissioner for Offender Management and Prisons

38.  We share the concerns expressed by the Parliamentary and Health Service Ombudsman, in her letter to us dated 10 December 2007, and by the Prisoner Ombudsman for Northern Ireland, in his letter dated 2 January 2008, that the new Commissioner will not in fact be truly independent of those subject to investigation, particularly the Secretary of State, because of the various ways in which the Secretary of State can control and influence the new Commissioner, as summarised above. We are also concerned that the proposal will in fact diminish the overall level of protection for vulnerable prisoners because it removes investigations from the remit of an existing genuinely independent Ombudsman. We recommend that the Bill be amended to make the Commissioner truly independent of the Secretary of State and accountable directly to Parliament not the Secretary of State. (Paragraph 1.40: 5^th Report)

39.  In placing what have previously been purely administrative arrangements on a firm statutory basis, it is the Government's view that the provisions in what were Parts 4 and 5 of the Bill (Lords Introduction print) would have substantially enhanced the standing and independence of the new Commissioners. However, it was evident from public statements made by the current ombudsmen, Stephen Shaw and Brian Coulter, and by the Parliamentary Ombudsman, Ann Abraham, that there was significant disquiet about the provisions in the Bill. All three Ombudsmen have argued for a quite different model which provides for direct accountability to Parliament.

40.  In the absence of such a consensus, the Government announced at Lords Second Reading its intention withdraw these two parts (they were duly excised from the Bill at Lords Committee Stage on 5 February).

41.  The Government remains committed to placing these two important offices on a firm statutory basis. We will now enter into a period of further consultation with interested parties. We will need to be satisfied that any alternative statutory model will provide value for money and an enhanced level of service.

Compensation for miscarriages of justice

42.  We do not accept that there is any rational connection between limits on compensation for miscarriages of justice and limits on compensation for victims of crime. In our view, where the State is responsible for a miscarriage of justice, there arises an obligation to restore the individual as closely as possible to the position he or she would have been in but for the miscarriage of justice. It is not difficult to imagine extreme cases in which a limit of £500,000 would fall far short of such an amount, for example where an innocent person has served a very long sentence for a very serious crime and so foregone a lifetime's opportunities. We recommend that the cap on the amount of compensation be deleted from the Bill. (Paragraph 1.44: 5^th Report)

43.  The Government set out in its letter to the Committee of 6 December 2007 (see Appendix 3 to the Committee's 5^th Report) why it considered the proposed cap on the maximum compensation payable following a miscarriage of justice was compatible with our international and ECHR obligations. The Committee appear to accept our reasoning but recommend that the £500,000 cap should be removed from the Bill on the grounds that there is no 'rational connection between the limits on compensation for miscarriages of justice and limits on compensation paid to victims of crime'.

44.  While it is accepted that the causes of miscarriages of justice are entirely different from those who are victims of violent crime, the consequences in both cases can be similar in that lives can be blighted. The average award for a victim of violent crime is around £5,500 while the average following a miscarriage of justice is over £250,000 - about fifty times more. Currently, there is no limit of the level of compensation paid following a miscarriage of justice whereas there is an absolute cap of £500,000, no matter what the consequences, payable to victims of crime. The Government does not consider that these huge disparities are justified.

45.  It is not the case that the State is always to blame for a miscarriage of justice. For example developments in medical science since the time of the trial can show that evidence given at trial was flawed, or incomplete, or on occasions there may be mistakes by the defence team.

46.  As David Hanson pointed out in his letter of 6 December, the proposed cap on miscarriage of justice compensation was set at a high level, £500,000. However, we have listened carefully to the points made during the passage of the Bill in both Houses and by the Committee. In response a Government amendment was agreed at Lords Report stage so that where the victim of a miscarriage of justice meets the eligibility requirements for compensation in section 133 of the Criminal Justice Act 1988 and has spent 10 or more years in relevant detention the maximum compensation payable will be £1,000,000. Where the person has spent no time at all in detention, or spent a period in detention of less than 10 years, the maximum payable will remain at £500,000.

47.  The Government believes that the proposed new arrangements will continue to enable significant compensation to be paid to those who are victims of miscarriages of justice, while at the same time ensuring that there is a better balance between the compensation paid to victims of crime and that paid following a miscarriage of justice.

Extreme pornography

48.  Our concerns about the vagueness of the definition of the offence of possession of extreme pornographic images, which we expressed in correspondence with the Minister, remain. It is in our view questionable whether the definition of the new offence in clause 113 is sufficiently precise and foreseeable to meet the Convention test of "prescribed by law". The offence requires the pornographic image in the individual's possession to be "extreme". An assessment of whether an image is or is not "extreme" is inherently subjective and may not, in every case, be, as the Government suggests, "recognisable" or "easily recognisable". This means that individuals seeking to regulate their conduct in accordance with the criminal law cannot be certain that they will not be committing a criminal offence by having certain images in their possession. We look forward to the Government bringing forward an amendment to make the scope of the new offence more precise. (Paragraph 1.50: 5^th Report)

49.  The Committee has suggested that it is questionable whether the definition of the offence is sufficiently precise to be "in accordance with the law". They have contended that whether or not an image is 'extreme' is inherently subjective and that as a consequence individuals will not be able to be certain whether they are committing a criminal offence.

50.  During the debate in Commons Committee, concerns were raised about the ambit of the offence and the clarity of the definitions. It was argued that, as drafted, the offence could potentially catch a scene taken from a popular mainstream movie "Casino Royale" which purports to depict (albeit not explicitly) torture inflicted on the victim's genital area. Ministers consequently undertook to consider whether the definitions within the offence could be further clarified.

51.  The Lords agreed a series of Government amendments at Committee stage which we believe clarify the main elements of the offence and put it beyond doubt that popular mainstream films do not come within its scope.

52.  Firstly, we have clarified the definition of pornography (the first element of the offence). It was always our intention that the question whether or not material is pornographic should be a matter which the jury (and by implication the pornography user) could take a view on simply by reference to the nature of the material before them, without having regard to the intent of those who produced it. Our amendment clarified this by providing that "An image is pornographic if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal".

53.  The second main change our amendments made related to that part of the offence which lists the "extreme images". The various occurrences of the words "appears to" have been omitted and we have provided instead that the acts depicted must be "explicit and realistic". This should serve to clarify that the offence targets only graphic convincing material.

54.  We have also slightly restructured this part of the offence so that the persons and animals depicted must be such that a reasonable person looking at the image would think that they were real. The same requirement does not apply in respect of acts, but as explained above, depicted acts would have to be "explicit and realistic". This position as regards acts does not denote a change in policy but flows from our restructuring of the offence in order to provide greater clarity.

55.  The third (and most significant) change our amendments provided for is the creation of a new and additional element of the offence.

56.  That new element requires that the material caught "is grossly offensive, disgusting or otherwise of an obscene character". The intention is to align the offence more closely with the Obscene Publications Act 1959 to give greater certainty in respect of our policy intention to catch only material which it would already be illegal to publish here.

57.  Those then are the changes we have made to the offence. We consider that they have addressed the concerns raised in Parliament about the scope of the offence. We are hopeful that they will also address the related concern the Committee has raised about whether the offence is precise enough to be "in accordance with the law". Insofar as the Committee is not persuaded by our amendments we make the following points.

58.  There is a limit to the extent to which language can encapsulate images. When delineating and thereby criminalising images of a particular nature we will never be able to reach a position in which every single person will know with certainty in respect of every single image which side of the line it falls. But, that is not a position the courts or the Convention expect us to reach. For example, in the case of R v O'Carroll [2003] EWCA Crim 2338 in relation to an argument that the term 'indecent' (in the context of images of children) was too imprecise to enable the applicant to know in advance whether his conduct was criminal, the Court of Appeal held that "it is not necessary for an individual to be able to be sure in advance whether his conduct will be characterised by a jury as a crime." A similar argument was made in the case of R v Stephane Laurent Perrin [2002] EWCA Crim 747 in respect of the term 'obscene' as it appears in the Obscene Publications Act 1959. In relation to that argument the Court of Appeal concluded "not only does the statute speak for itself, but there is also a body of European authority to support the proposition that for the purposes of Article 10:2 the offence of which the applicant was convicted was for a legitimate purpose prescribed by law." At the heart of the European authority to which the Court of Appeal is there referring is the case of Muller v Switzerland [1991] 13 EHRR 212 in which the European Court rejected the submission that the word "obscene" in the Swiss Criminal Code was too vague to enable the individual to regulate his conduct, saying at paragraph 29 of the judgment that, "The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague ... criminal law provisions on obscenity fall within this category".

59.  We are not citing those judgments in order to suggest either that we intend or that it would be acceptable for our possession offence to be fluid or vague in terms of what it catches, rather what we are saying is that we consider that we have provided as much clarity as is possible and in doing so have discharged our burden of ensuring that the offence is "in accordance with the law". Our offence in fact provides greater clarity than the 'indecency' and 'obscenity' offences with which the above cited cases are concerned, because in addition to providing that material must be 1) pornographic and 2) grossly offensive, disgusting or otherwise of an obscene character, we have also set out a list of the extreme, explicit and realistic images which are caught.

60.  We do not share the Committee's view that whether or not an image is an extreme image is inherently subjective. On the contrary we consider, for example, that whether a pornographic image depicts, in an explicit and realistic way, an act which is likely to result in serious injury to a person's genitals is a largely objective question. We necessarily accept that there will be grey areas at the periphery, but do not consider that they are such as to render the offence not "in accordance with the law." This point is addressed further, below.

61.  We remain concerned that "serious injury" (Clause 63(7)(b)) may be subject to a broadly subjective assessment. This term must be interpreted in a way which does not lead to unjustified interferences in an individual's private life and discrimination on the basis of his or her sexual orientation or gender. We recommend that the threshold for serious injury must include permanent physical harm. (Paragraph 2.16: 15^th Report)

62.  There is some evidence, provided by the Government's rapid evidence assessment, of a causal link between viewing such material and an increased risk of committing sexual offences for a small number of people. However, the evidence does not extend to demonstrating that those who participate in the making of images are harmed by their involvement. We therefore recommend that the definition of the offence be further refined to exclude images created by consenting adults, where there is no serious physical harm to any participant and no intention to distribute the material beyond the participants involved. We recommend that guidance spell out factors which should be taken into account in order to ascertain that participants have consented. Such factors should include, for example, whether or not participants received payment. (Paragraph 2.17: 15^th Report)

63.  In its report the Committee addressed the issue of proportionality and made two consequential recommendations. The first was that 'serious injury' be defined to mean permanent physical harm, and the second was that the Government exclude from the scope of the offence material which is created by consenting adults, in relation to which no serious physical harm was caused to any participant, and in respect of which there is no intention to distribute the material beyond the participants.

64.  Before addressing the specific points which the Committee has made, the Government would like to make two general points.

65.  Firstly, the offence does not regulate any action on the part of any person, other than the action of possessing certain material. In particular, the offence does not deal with what consenting adults may or may not do to each other. Secondly although the offence regulates the material a person may possess, we believe the way it is formulated should ensure it relates only to material which, by virtue of the Obscene Publications Act, it is illegal to publish in the United Kingdom. Thus when approaching the proportionality question, it should be kept in mind that the freedom which this offence limits is the freedom to possess material which cannot be legally published or distributed in this country. Moreover that freedom, such that it is, is one which only has a significant practical (as opposed to theoretical) existence because of the advent of the internet.

66.  Turning to the Committee's specific points: the words 'serious injury' are not defined in the Bill and would thus take their ordinary dictionary meanings. The Committee expressed concern that they "may be subject to a broadly subjective assessment". We appreciate that the term is not defined, but if by that the Committee means that the words are indeterminate, the Government does not agree. We believe that, as a matter of normal meaning, most injuries will be clearly either serious or not. We accept that, as with all language, there is some grey in the middle of the spectrum, but not such as to render the phrase "broadly subjective".

67.  The Committee has suggested that the phrase be defined as including (and therefore meaning) permanent physical harm. We consider that carries as much room for debate as the existing phrase. Does, for example, a scar amount to permanent physical harm or must the injury have some form of debilitating or disabling effect? Moreover, the suggestion would have the effect of removing from the scope of the clause much of the extreme pornography which could be and is prosecuted under the Obscene Publications Act. For example, material which involves cuts to and electrodes on a person's genitalia could well give rise to serious harm, but (the scarring point aside) is unlikely to amount to permanent physical harm. The effect, therefore, of the Committee's suggestion would be to raise the threshold for this possession offence higher than it is for the publication offence. As noted at the outset, the proportionality question in issue here is the freedom to possess material which cannot be legally published. The Government does not consider that the Convention dictates that that issue be resolved by setting the higher threshold which the Committee has proposed.

68.  The Committee's second suggestion was a refinement of the offence in respect of consenting participants.

69.  The Committee acknowledged that there is some evidence, supported by the Government's rapid evidence assessment, of a causal link between viewing extreme pornographic material and an increased risk of committing sexual offences for a small number of people. They noted, however, that the evidence does not extend to demonstrating that those who participate in the making of images are harmed by their involvement. The Committee therefore recommended that the offence be refined to exclude images created by consenting adults, where there is no serious physical harm to any participant and no intention to distribute the material beyond the participants involved They further recommend that any guidance spell out factors taken into account in order to ascertain that participants have consented including for example whether or not participants received payment.

70.  The Government has now tabled an amendment for Third Reading in the Lords which addresses the concern to which the Committee's suggestion relates, a concern which was also raised during debates in both Houses, namely the anomaly that one effect of the offence is that there would be certain acts which it would be lawful to do, but which it would not be lawful to possess a photographic record of oneself doing.

71.  The relevant Government amendment introduces a new defence which will apply where the possessor of an extreme pornographic image proves firstly that he was a participant in the act depicted, or was present when the event took place, and secondly that no harm - other than harm that can be and was lawfully consented to - occurred to any of the participants. This defence will not apply in respect of bestiality images or necrophilia images which involve a real corpse.

72.  Where actual harm occurs in the creation of the image, the defence will only apply where the defendant shows that the harm was lawfully consented to. The Government notes that in footnote 92 of its report the Committee states that it agrees with the minority position in R v Brown [1993] 2 All ER 75. However, this offence concerns possession of extreme pornographic material, it does not address the law on consent to injury in a sexual context. The new defence is therefore tied simply to the law on consent at any given point in time. If the position changes in respect of consent to injury in a sexual context, this will automatically be reflected in the proposed defence.

73.  In their proposal - to which the new defence is fairly similar - the Committee suggested an element relating to consent, and therefore guidance on factors which may be taken into account in determining whether consent is present. Given that the new defence is structured by reference to the absence of harm or unlawful harm, the Government does not see a need to also place on defendants a requirement to show consent.

74.  With regard to the Committee's comments on the REA and the evidence of the risk of harm for those who participate in the making of extreme pornographic images, the Government notes that the REA found that there had simply been no formal research studies of the effects on those who participate in making extreme pornography. That is not to say such that such evidence does not exist. The REA mentions, for example, the evidence given by female victims of pornography to Public Hearings held in the U.S.A. in 1983. There is anecdotal evidence to show that individuals who participate in extreme sexual practices can harm themselves and in some cases, this has resulted in death - however we acknowledge that these incidents have not been directly linked to the production of images.

Prostitution

75.  We welcome the motivation behind the Bill's provisions on prostitution, in particular the emphasis on rehabilitation and its attempt to facilitate assistance for those vulnerable women who are forced to resort to prostitution. Such measures have the potential to enhance the human rights of such women. However, we are concerned that these measures may in fact lead to the detention of women for up to 72 hours for failing to attend a meeting, and in fact may eventually lead to their imprisonment for failure to comply with the terms of court orders. (Paragraph 1.55: 5^th Report)

76.  On 27 February 2008, Lord Hunt of Kings Heath announced (Official Report, col. 658-660) that the Government was withdrawing the provisions relating to prostitution in clauses 123 and 125 (Lords Introduction print) in order to facilitate the speedy passage of the Bill so that the provision restoring the statutory prohibition on inducing prison officers to take industrial action can be in force by 8 May when the current voluntary industrial relations agreement between the Prison Service and the POA expires. The Lords subsequently agreed Government amendments to withdraw the clauses on 3 March.

77.  The Government remains firmly committed to the prostitution provisions and will bring forward fresh legislation at the earliest opportunity.

Blasphemy

78.  In our view, the continued existence of the offences of blasphemy and blasphemous libel can no longer be justified, and we are confident that this would also, in today's conditions, be the view of the English courts under the Human Rights Act and the Strasbourg Court under the ECHR. We therefore look forward to the Government amendment to the Bill in the Lords abolishing the offences of blasphemy and blasphemous libel. The amendment proposed in the Commons had the virtue of simplicity, by just abolishing the two offences. We recommend that the Bill be amended to similar effect. (Paragraph 1.60: 5^th Report)

79.  The Government brought forward amendments at Committee Stage in the Lords. The Lords agreed to these amendments on 5 March (see now clause 78 of the Bill).

80.  We welcome the abolition of the offences of blasphemy and blasphemous libel as a human rights enhancing measure. (Paragraph 2.40:15^th Report)

81.  The Government welcomes the Committee's conclusion that the abolition of these offences is a human rights enhancing measure.

Incitement to hatred on grounds of sexual orientation

82.  We welcome the creation of the new offence of incitement to hatred on grounds of sexual orientation as a human rights enhancing measure. As Stonewall has demonstrated, there is now considerable evidence that gay people in particular are often the subject of material inciting people to violence against them. Where such clear evidence of harm exists, there is a positive obligation on the State under Articles 2, 3 and 8 ECHR (right to life, prohibition of inhuman and degrading treatment, and right to respect for private and family life) to ensure that the criminal law is adequate to protect people from such harm. We are gratified to see that there was a clear crossparty consensus in the Commons that there is an obligation on the State to act to protect against such harm. (Paragraph 1.62: 5^th Report)

83.  We welcome the fact that the new offences concerning incitement to hatred on grounds of sexual orientation are narrowly defined so as to apply only to threatening words or behaviour intended to incite hatred against people on the basis of their sexuality. In our view this provides an appropriate degree of protection for freedom of speech. (Paragraph 1.64: 5^th Report)

84.  We will be writing to the Minister to ask about the evidence the Government has about the extent of the problem of incitement to hatred on transgender grounds and may return to the issue in a future report. (Paragraph 1.65: 5^th Report)

85.  The Government endorses the Committee's concern that legislation should be firmly based on evidence.

86.  The Government has been in contact with a number of groups and individuals representing transgender people, including Press for Change, Gender Trust, FTM network, Gender Identity Research and Education Society, GALOP and the Beaumont Trust. The Government has heard some eloquent and specific examples of the difficulties which some transgender people may face.

87.  Like the Committee, the Government has considerable sympathy for the views expressed by transgender organisations. We in no way want to minimise the difficulties faced by many transgender people. But the evidence we have suggests that most of the incidents described are already criminal, and should be dealt with by existing criminal law. Incitement to commit a crime (as opposed to stirring up hatred) is already a criminal offence. In the case of for example one case of disparaging song lyrics that was cited as evidence, the Government believes that although distasteful they would be unlikely to be considered threatening to transgender people as a group.

88.  In summary, the Government has not seen any compelling evidence of words, behaviour or material, which are threatening and intended to stir up hatred against transgender people as a group. At present, therefore, the Government is unpersuaded that there is a significant gap in the law. The problem seems to be a different one, and may require different solutions. A cross-Government Working Group exists to tackle hate crime, and its priorities include increasing reporting of hate crime and increasing the number of hate crimes brought to justice.

89.  The state has positive duties to protect the human rights of all people within its borders (including, amongst other methods, through effective and enforceable criminal laws). We have not been provided with any of the material on which the Government relies, but have simply been informed of its interpretation of that evidence, which leads it to conclude that there is no need to extend the offence to cover transgendered people. We find it very hard to accept the Government's assertion, in the absence of evidence, that transgendered people are not subject to hate crime, being part of a similarly vulnerable group. We recommend that the Government conduct urgent research into the extent of hate crime experienced by transgendered people in order to ensure that it complies with its positive obligations to protect equally the rights of all members of society. (Paragraph 2.20: 15^th Report)

90.  The Committee have recommended that further research should be undertaken into the extent of offences against transgendered people, and whether the offence of inciting hatred should apply to them. They are disappointed that they have not seen the evidence which we have received, and from which the Government has concluded that there is at present no compelling reason to justify extending the offence to transgendered people given the incursion into free speech this would involve.

91.  The Government sympathises with the Committee's position on this and are aware of the need and the positive obligation to protect the human rights of individuals and groups. The Government also fully accepts that transgendered people are the victims of crimes which may be motivated by hatred and that this needs to be tackled.

92.  Serious though it is, evidence of hate crime does not in itself provide evidence of the need for an offence of incitement to hatred. The law as it stands protects everybody from violence such as assault, criminal damage or harassment. It also protects people from incitement to any offence, including violence, harassment and criminal damage.

93.  In looking at an offence of incitement to hatred the Government is therefore looking for evidence of words or actions which go beyond the offensive, but which are not already subject to the criminal law. We believe that there is a gap in the law dealing with the use of words or behaviour which is threatening and which is intended to stir up hatred against a group because of their sexual orientation. We have had examples such as rap and reggae song lyrics, leaflets and websites of extreme religious and political organisations, which are threatening to the group as a whole and which are intended to stir up hatred. We do not believe the current law would catch these lyrics, pamphlets and websites.

94.  From the evidence which the Government has seen about transgender crime, the problem is slightly different. It is about acts of harassment, assault, criminal damage and other acts which are currently criminal. We have not seen significant evidence that transgendered people are the subject of words or behaviour which are threatening and intended to stir up hatred, and which would not otherwise be criminal.

95.  To assist the Committee on the information which has been received by the Government, a list is attached, together with the detailed evidence. To protect the vulnerable, we have removed names in some instances. As we have explained, the evidence points towards criminal offences such as harassment and offences against the person. But there is little evidence of stirring up hatred. There is one example of rap lyrics. But although these are distasteful and denigrating, we believe they are unlikely to pass the threshold of the offence - words or behaviour which are threatening and intended to stir up hatred.

96.  The Government believes therefore that the problem will not be solved by creating a new criminal offence of stirring up hatred. We should rather be concentrating on making sure offences against transgendered people are properly reported and recorded, treated seriously, investigated and wherever possible brought to justice. Creation of a new offence of stirring up hatred would not necessarily help in any of those areas.

97.  There is a cross-Government working group on hate crime. Their work includes tackling crime against transgendered people. A lot of good work is going on in conjunction with police forces, Crime and Disorder Reduction Partnerships and criminal justice boards. The main aims of the work are to increase reporting, increase the number of offences brought to justice, and prevent re-victimisation.

98.  The Government has placed £300,000 into the Victims Fund to tackle hate crime and to provide support for victims of hate crime. We expect the fund to support projects including a specific trans project to help teachers to tackle transphobia in schools. The Association of Chief Police Officers recently agreed a definition which they will use for monitoring hate crime. This includes transgendered as a specific category. This information will help us put effective measures in place to deal with such crimes.

99.  Clearly from the evidence submitted about crimes against transgendered people we have much still to do to achieve our aims. The Home Office leads on this area of work.

100.  The Government does not want to minimise the difficulties which many transgendered people face, and which you have illustrated to us. The Government certainly would not rule out an extension of the offence of stirring up hatred in the future, and it is something we will continue to monitor and consider carefully.

Self defence and the use of force to prevent crime

101.  We are satisfied that the new clause clarifies rather than amends the existing law, by articulating clearly in statutory form some of the most important elements of the case-law interpreting the scope of the defences in the use of force to prevent crime. As such, in our view the clause is to be welcomed as a clarification of the existing law. To this extent we consider the clause to be a human rights enhancing measure because it brings greater precision to the scope of a defence to a criminal charge and therefore improves legal certainty in the criminal law. (Paragraph 1.68: 5^th Report)

102.  The human rights issue which this matter raises is whether the right to life is adequately protected by the defence as it currently stands in the Bill, or whether the inclusion of "honest belief" as part of the defence risks putting the UK in breach of the positive obligation under Article 2 ECHR to ensure that its criminal law provides adequate protection for the right to life. This is an obligation which applies even to protect life against the unjustified use of force by other individuals, but it applies with particular strength where the use of force is by state agents. (Paragraph 1.72) Because the provision was inserted by Government amendment at Report stage, we have not yet corresponded with the Minister about this issue. We will write to him shortly and report further in due course. (Paragraph 1.73: 5^th Report)

103.  If the criminal law were amended to permit the use of disproportionate force in self defence or to prevent crime, the UK would be in breach of its obligation to ensure that its criminal law provides adequate protection for the right to life in Article 2 ECHR and the right to physical integrity in Article 8 ECHR. (Paragraph 2.24: 15^th Report)

104.  In our view, the failure to require reasonable grounds for an "honest belief" as part of the defence risks putting the UK in breach of the positive obligation under Article 2 ECHR to ensure that its criminal law provides adequate protection for the right to life. We recommend that the Bill be amended to require that there are reasonable grounds for an honest but mistaken belief about the circumstances. The question whether the degree of force used was reasonable in the circumstances should be decided by reference to the circumstances as the person using force reasonably believed them to be. Honest mistaken beliefs should provide a defence but only if the mistake was reasonable. We propose an amendment (see Annex). (Paragraph 2.26: 15^th Report)

105.  Amending the Bill as we propose would not, in our view, impose a disproportionate burden on the person who has used force to defend themselves against attack. The reasonableness of their belief about the circumstances would still have to be decided taking into account the considerations spelt out explicitly in the Bill, which recognise that determinations of reasonableness after the event must factor in a certain amount of leeway for beliefs and judgements made in the heat of an intensely stressful moment. (Paragraph 2.27: 15^th Report)

106.  In our view the position in the Strasbourg case-law is clear: an honest but mistaken belief that the use of force was necessary may be enough for that use of force to be compatible with Article 2 ECHR, but only if the honest mistake was reasonable. (Paragraph 2.32: 15^th Report)

107.  In our view the very minimum required by human rights law is an amendment to the Bill to make clear that honest but mistaken beliefs must be based on good reasons when force is used by state agents. In the event that the Bill is not amended to give effect to our principal recommendation above, requiring that honest but mistaken beliefs must always be reasonable, we recommend that the Bill be amended to ensure that this requirement that mistakes be reasonable always applies in the context of the use of force by state agents. We propose an amendment (see Annex). (Paragraph 2.35:15^th Report)

108.  The Committee reported on the self-defence provisions in the Bill in both its Fifth and Fifteenth Reports. The Government does not propose to add anything specifically in response to the Fifth Report, as this was covered in the letter of 12 March 2008 to the Committee from David Hanson (reproduced at Appendix 7 of the 15^th Report).

109.  In its Fifteenth Report, the Committee reported that the Strasbourg law is "clear" that allowing a defendant to rely on a mistaken belief that the use of force was necessary is compatible with Article 2 ECHR only if the belief was reasonable. They also suggest that this conclusion is particularly inescapable in the case of state agents.

110.  The Government is aware of various indications in ECHR case law that can be read as supporting this view, and the letter from the Minister of State mentioned a number of these, including the reference to "good reasons" in McCann v UK (1996) 21 EHRR 97), the case that the Committee emphasises in paragraph 2.31 of its report.

111.  However, the Government maintains that the position in human rights law is not in fact clear. We believe that the case law on this point is inconclusive and falls well short of a requirement to change our law. The passage in McCann which the Committee cites at paragraph 2.31 says that a defendant can rely on a mistaken belief which he holds "for good reasons", but it does not say in terms that this is an exhaustive account of the situations in which a defendant can rely on a mistaken belief. We further note that even in an academic article[19] which seems to be at the forefront of the academic debate over the ECHR compatibility of the law on self-defence, it is conceded that McCann is inconclusive on this point and that from an assessment of this case "it is difficult to reach any firm conclusions on whether or not English self-defence law might be incompatible with Article 2". What is clear is that the Strasbourg court has never taken the opportunities (in McCann and elsewhere) it has had to rule that our domestic law is ECHR incompatible, as might perhaps have been expected if in fact there was an obvious incompatibility.

112.  As far as the legal arguments are concerned, we would continue to maintain that case law suggests that the current position in common law is compatible with the requirements of ECHR Article 2 and that states are in any case permitted a certain flexibility in determining how their national law deals with these requirements. As previously indicated, we rely on a number of points in coming to this view. In particular, a person who professes an unreasonable mistaken belief as the basis of his use of force in self-defence is not automatically given the benefit of being judged on that basis. Rather, he is to be judged on the facts as he claims to have seen them only if the court believes that his view was genuinely held. And as previously noted, if a defendant's professed belief is unreasonable, that can of course be a powerful reason for disbelieving him. Moreover, in those cases where a person's use of force is to be judged on the circumstances as he mistakenly saw them, the degree of force use must have been objectively reasonable in those circumstances.

113.  On the underlying merits of the matter, the Government notes that to tighten up the law so that a defendant was judged on the facts as he saw them only if his belief was "reasonable" would be a significant shift away from the current position arrived at by the courts in common law. It would run counter to the concern that householders and others should be judged sympathetically on the basis of their mistaken beliefs. Even if a defendant has used excessive force because he has made an unreasonable mistake in his assessment of the danger he faced, it seems harsh to penalise him if in fact he had no aggressive intent and was simply reacting to the circumstances as he honestly saw them, or at most he had an intent that was justifiable in the light of his mistaken perceptions.

114.  The Government also notes the Committee's view in paragraph 2.34 that it is right in principle that state agents should be permitted to rely on their mistaken beliefs only when they are based on good reasons, because the state can be expected to train such agents to have a well-grounded belief. We see the force of this point, but we note that it would put a tremendous burden on service personnel on duty in dangerous parts of the world who have to make snap decisions. We would also observe that the beauty of the current position under common law, as reflected by the Bill, is that it sets a single, simply-understood, test of "reasonable force" across the board. In deciding if reasonable force has been used a court will be able to look at all the circumstances of the case, which could include the fact that a trained state agent can be expected to make a more accurate assessment of what force is needed than, for example, a civilian householder who is surprised by a burglar. Similarly, when a court comes to consider whether a defendant's professed mistaken and unreasonable belief was genuinely held, it is likely to show more scepticism in the case of a trained state agent than a householder. The Government therefore considers that the current law already caters adequately for the differences between state agents and others, and it would be reluctant to introduce dual tests the face of the legislation unless there is a clear requirement in case law to do so.

115.  So the Government acknowledges that the position is arguable, and indeed has been argued in legal academic journals. But there is no consensus in respect of the answer. The courts, in Strasbourg and domestically, have not developed the law in the way that the Committee contends. And, as the Minister mentioned in his letter of 12 March, the leading text book Smith & Hogan's Criminal Law takes the view that to invalidate a defendant's right to rely on a mistaken belief unless that belief was reasonable would "be an undesirable and unnecessary conclusion and the English courts should not arrive at it unless compelled to do so". The Government finds this reasoning persuasive.

Violent Offender Orders

116.  We are concerned that the power to interfere with various Convention rights by imposing a VOO is insufficiently defined in law to satisfy the requirement of legal certainty which is also a fundamental feature of human rights law, including the ECHR. (Paragraph 1.79: 5^th Report)

117.  In our view, in order to provide the requisite degree of legal certainty, the Bill should be amended to provide, at the very least, an indicative list of the types of prohibitions, conditions or restrictions which may be imposed, although we consider that it would be more appropriate, and offer greater protection for individual rights, if an exhaustive list were set out. (Paragraph 1.80: 5^th Report)

118.  Following the Committee's recommendation, the Government tabled amendments at Report Stage in the Lords to provide an indicative list of the types of prohibitions, conditions or restrictions that could be imposed as part of a VOO. The Government's intention was that this list would not be an exhaustive one and will therefore not limit the conditions which can be made as part of an Order. This is because risk is a highly dynamic concept and will present itself in various guises depending on the individual and the context in which they are operating. In the Government's view, the provision of an exhaustive list of possible conditions would not give the court sufficient flexibility. Nonetheless, at Report Stage, the Lords agreed an opposition amendment which provides for an exhaustive list of possible conditions (see clause 101 of the Bill). The Government will reflect carefully on the debate before deciding how best to proceed.

119.  The Bill has always required that a condition cannot be imposed as part of a VOO unless the court considers it necessary for the purpose of protecting the public from the risk of serious violent harm caused by the individual. Therefore, any condition must be directly linked to the specific risk posed by that individual. This provides an overriding safeguard for the individual. In imposing conditions as part of a VOO, the court would itself have to be acting compatibly with the Human Rights Act 1998. Conditions would also need to be proportionate to justify interference with Convention rights.

120.  We consider VOOs to be more akin to control orders and serious crime prevention orders, both in terms of the seriousness of the conduct in which the individual must have been involved before the order can be made and in the severity of the possible restrictions which can be imposed. (Paragraph 1.89: 5^th Report)

121.  The Government considers that VOOs most closely mirror Sexual Offences Prevention Orders (SOPOs) as provided for in the Sexual Offences Act 2003. SOPOs are an effective and valued tool and are used regularly by the police and other public protection agencies. They are designed to protect the public from serious physical or psychological harm caused by an individual committing a specified sexual offence. The Government wishes to apply the same successful approach to the protection of the public from serious violence.

122.  In our view, the combination of the fact that a VOO will only be made where an individual has already been convicted of a serious violent offence, the risk being protected against is the risk of that person causing serious violent harm in the future by committing a serious criminal offence, the severity of the restrictions to which an individual may be subject under a VOO, and the possible duration of such an order(up to 2 years and indefinitely renewable) means that in most cases an application for a VOO is likely to amount to the determination of a criminal charge for the purposes of Article 6 ECHR and therefore to attract all the fair trial guarantees in that Article. (Paragraph 1.90)

123.  The Government's view is that VOOs are civil in nature; they do not involve the determination of a criminal charge. This is because VOOs are preventative rather than punitive in character.

124.  Although a person must have been convicted of a serious offence in the past, this is only an initial qualifying condition. For a VOO to be imposed, the individual must have, in addition, acted in such a way as to make it necessary to impose a VOO for the purpose of protecting the public from the risk of future serious violent harm. There must be clear evidence of a risk that the individual is going to commit a serious offence in the future, and it is this future offence that the VOO is designed to help prevent.

125.  A VOO can only contain such prohibitions, restrictions or conditions as the court considers necessary for the purpose of protecting the public from the risk of serious violent harm. This also makes clear that the nature of a VOO is to protect the public from the risk of future harm. The individual is not punished for any of his past behaviour, and in particular, he is not being further punished for his initial qualifying offence. A VOO will restrict to some degree the freedom of the individual, but these restrictions are imposed for preventative reasons, not for punitive reasons.

126.  Breach of a VOO is itself a criminal offence, which suggests that the VOO cannot also be a criminal measure. In addition, a VOO is made by a Magistrates Court on complaint, which is within the court's civil jurisdiction.

127.  As stated above, VOOs are most similar to SOPOs. Parliament has already approved the use of these orders in the Sexual Offences Act 2003. For an individual to receive a SOPO, he must have been convicted of a specified offence and have subsequently acted in such a way as to make it necessary to make a SOPO for the purpose of protecting the public from serious sexual harm. The type of restrictions that can be imposed under a VOO are similar to those that can apply under a SOPO.

128.  Following the Committee's recommendation, the Lords accepted a Government amendment at Report Stage so that VOOs have a maximum length of 5 years (see clause 97). They can only be renewed following a further court application, at which the court will need to be satisfied that continuation of the order is necessary and that the conditions in the VOO are also still necessary.

129.  As the Government does not consider VOOs to be a criminal measure there is no requirement to comply with the criminal fairness guarantees of Article 6. However, the Bill contains a number of procedural safeguards for individuals in respect of whom an application for a VOO is made.

130.  In our recent work on counter-terrorism policy and human rights we have drawn attention to the unsustainability in the long term of resort to methods of control which are outside of the criminal process and which avoid the application of criminal standards of due process. We are concerned that the introduction of VOOs represents yet another step in this direction. (Paragraph 1.91: 5^th Report)

131.  VOOs form part of a package of measures which already exists to tackle the issue of serious violence and are designed as an addition, rather than as an alternative, to powers already available within the criminal justice system.

132.  Violent Offender Orders provide an additional and important risk management tool by imposing certain conditions on an individual where they are considered necessary for the purposes of protecting the public from serious physical or psychological harm. The Orders are therefore intended to prevent an individual from committing a serious violent offence. If such a violent offence does occur, an individual will come under the jurisdiction of the criminal justice process in the normal manner which we agree is entirely appropriate.

133.  We welcome the Government's acceptance in debate that the criminal standard of proof applies. However, this acceptance should be spelt out on the face of the Bill to provide that before making a VOO, the court must be satisfied beyond reasonable doubt that the person has "acted in such a way as to make it necessary to make a violent offender order" (clause 151(2)(b)). As we have stated on previous occasions, we do not consider that issues of such importance, and with such serious consequences for the individual, should be left to guidance, but instead should be made explicit on the face of the Bill. (Paragraph 1.95: 5^th Report)

134.  We recommend that the Bill be amended in the manner proposed in Committee to make explicit that the appropriate standard of proof for an application for a VOO be the criminal standard, in accordance with the decision of the House of Lords in McCann. (Paragraph 1.96: 5^th Report)

135.  As set out above, it is the Government's view that VOOs are civil in nature. As such the civil standard of proof should apply in proceedings for a VOO. In McCann the House of Lords were content that the civil standard is not a static one; it is flexible depending on the seriousness of the allegations made against an individual. Where serious allegations are involved, the heightened civil standard should apply. This heightened standard is virtually indistinguishable from the criminal standard of beyond reasonable doubt.

136.  The Government expects the courts to apply the heightened civil standard to VOOs. This would mean in practice that a court would apply the heightened civil standard in relation to the individual's behaviour since the date of his conviction for the qualifying offence. Consideration of whether a VOO is necessary would be a court judgment. The Government does not consider that it is appropriate to set out the criminal standard of proof on the face of the Bill; this would introduce a criminal concept into a civil order. The criminal standard has not been set out on the face of any legislation dealing with civil orders. The Government is content to leave the question of standard of proof to the courts and are confident that they will be able to apply the appropriate standard to VOOs.

137.  We are concerned that VOOs may be made without oral evidence or the opportunity for the individual to cross examine witnesses. We recommend that there needs to be a full adversarial hearing in order to ensure that the fairness guarantees in Article 6 ECHR are met. (Paragraph 1.97: 5^th Report)

138.  Given the significant consequences for an individual if an Order is made, we repeat our recommendation, for the sake of clarity and to protect the fair trial rights of those against whom applications for VOOs are made. (Paragraph 2.42:15^th Report)

139.  The Government's view is that a VOO is not a criminal measure. Accordingly, it is not necessary to comply with the criminal fairness guarantees of Article 6 ECHR.

140.  However, the Government has considered the Committee's views and the Lords accepted a Government amendment at Report Stage so that the person subject to the VOO has the right to be heard at the application hearing and not just at the point of variation, renewal or appeal (see clause 100). As such, the individual's case against the making of a VOO will be before the court. The individual would also be able to put questions to anyone giving evidence in person at the hearing

141.  The Government needs to ensure that hearsay evidence is available for use in an application for a VOO. This is important so that witnesses who feel intimidated from giving evidence directly can still have their evidence considered indirectly by the court. In recognition of the seriousness of Violent Offender Orders, the Government intends to make clear in guidance that hearsay evidence should only be used where necessary and that in practice we would want witnesses to attend the court hearing in person and therefore be cross-examined. To support this, the Government has invested a considerable amount of resource into supporting witnesses including witness protection measures such as screens and voice distortion technology. The Government has also committed to strengthen arrangements for victims further as part of its new Action Plan to tackle violence which was published on 18 February 2008.

142.  We recommend that clause 153(3) (relating to interim violent offender orders) be amended to include, as a third requirement, that prima facie evidence be provided to the court that the individual has engaged in the behaviour set out in clause 151(2)(b). Further, we suggest that the period for which an individual IVOO may be granted be reduced from four weeks to a more limited period, and that IVOOs be nonrenewable. (Paragraph 1.99: 5^th Report)

143.  At Report Stage, the Lords agreed Government amendments which make such significant changes to the interim Orders to reflect the Committee's suggestions.

144.  Firstly, the Bill has been amended to ensure that an interim Violent Offender Order will only be made when three conditions have been met (see clause 103). The conditions are: that an individual is a qualifying offender; that the court would be likely to make a Violent Offender Order in respect of that person; and that it is desirable to act before the application for the full Order is determined with a view to securing the immediate protection of the public from the risk of serious violent harm caused by that person.

145.  Secondly, the Lords amended the duration for which an interim Order can be applied by requiring that interim Orders are non-renewable and can only be imposed for a certain period of time as specified within each individual Order. The Committee Rights has suggested that the time period for which an interim Order can be applied should be restricted to two weeks. However, having considered this recommendation, the Government does not believe that this would always be in the best interests of the public whom we seek to protect nor the individual in respect of whom an application is being made.

146.  Her Majesty's Courts Service (HMCS) has strongly recommended that the time period for which an interim Order might be applied should not specified or limited. This is to ensure that there is not a gap in supervision in the case of an interim Order expiring before a decision on the main Order is taken. HMCS has also stated that restrictions on time periods are unnecessary because the court will always know exactly when a decision on the main Order is expected.

147.  We remain to be convinced that the imposition of a VOO or IVOO, particularly one with especially onerous terms, would always comply with Article 7 ECHR. We are disappointed that the Government has chosen not to put in place safeguards to ensure that an individual is not retrospectively punished and we recommend that the Government reconsiders its opposition to introducing safeguards in this regard. (Paragraph 1.102: 5^th Report)

148.  The Government remains of the view that the provisions on VOOs do not engage article 7. The VOO is not imposed as an additional punishment for one or more of the specified offences. VOOs are instead a civil preventative order with the specific purpose of preventing the risk of future serious violent harm. The Lords agreed Government amendments at Report stage which state even more clearly that VOOs can only be made on the basis of current risk and therefore before a VOO can be made, an up to date assessment of risk would be needed. Breach of the terms of a VOO will be a criminal offence, in line with arrangements already in place for other civil orders. This is in line with article 7 as breach of a VOO will be a criminal offence at the time that the breach is committed.

149.  We welcome the Government's reconsideration of the provisions on VOOs, on which we expressed a number of serious concerns in our previous Report. As we have not seen the proposed Amendments, we are unable, at present, to comment on their substance or on the extent to which they meet the concerns that we raised. (Paragraph 2.41:15^th Report)

150.  The Government has noted the Committee's concerns and paragraphs 118-148 above refer to the amendments brought forward by the Government which respond to those concerns

Premises closure orders

151.  We are pleased to note that the Government intends to produce guidance dealing more fully with the operation of premises closure orders in practice. However, in our view, this guidance will set out requirements which, for reasons of legal certainty and to ensure the proportionality of the measures with Convention rights, should be contained in the Bill itself. In particular, we are disappointed that the Government does not propose to include, on the face of the Bill, the requirement that a premises closure order only be imposed as a last resort, and that the needs of children and vulnerable adults be taken into account. We encourage the Government to reconsider its position in order to ensure that premises closure orders are proportionate to the interference with the rights to respect for family and home life (Article 8 ECHR) and the peaceful enjoyment of property (Article 1 of Protocol 1). (Paragraph 1.110: 5^th Report)

152.  The Government acknowledges the importance of closure notices and orders being made as a last resort after all other interventions and measures have failed or have been reasonably considered and that the consequences for children and vulnerable adults must be considered. However, we maintain that the best place for these important considerations is in the robust guidance that will be issued to practitioners instead of on the face of the Bill as proposed here. This is because placing too many obligations on practitioners will result in the orders not being applied for rendering the legislation without teeth and therefore useless. The Lords agreed a Government amendment at Report Stage to make the proposed guidance statutory and provide a duty on those using the power to have regard to the guidance (see new section 11JA of the Anti-Social Behaviour Act 2003 inserted by Schedule 20 to the Bill).

153.  Ultimately, if children and vulnerable adults are affected by the closure of certain premises where significant and persistent anti-social behaviour occurs, orders would only be pursued as a matter of last resort after other interventions have been tried or considered. A multi-agency approach would have to have been taken first to tackle the nuisance behaviour by using the full range of support and enforcement measures available. The Government would therefore expect to see the use of, for example, acceptable behaviour contracts, parenting contracts, injunctions or ASBOs, alongside offers of support before a closure is pursued. Agencies are already under duties to safeguard and protect the welfare of children under the Children's Act 2004.

154.  Before issuing a closure notice, the police and local authorities are bound to act in compliance with the ECHR and would consider the needs of any vulnerable people and children, the rights to respect for family and home life and the peaceful enjoyment of property as well as the interests of the wider public when gauging the proportionality of the notice. The court process is a further safeguard and magistrates would also weigh up such interests in their capacity as public authorities under the Human Rights Act. In addition to these wider duties and the robust guidance to be published, proportionality is already safeguarded on the face of the Bill, insofar as magistrates must satisfy themselves of the statutory test that the making of an order is necessary to prevent such disorder or nuisance.

Nuisance or disturbance on NHS premises

155.  We consider that the Government has made its case for the necessity of a new power to deal with individuals who cause a nuisance or disturbance on NHS premises. The proposed new offence appears to attempt to strike a balance between the desire for staff and patients not to suffer nuisance and disturbance and the needs of those requiring medical attention to be treated. We welcome the safeguards which the Government has proposed and its commitment to ensuring that the rights of individuals to access medical treatment or advice are protected. The question is whether the proposed measures put into effect the Government's commitment. We are concerned to see that the manner in which the power to remove may be exercised is to be contained in guidance, rather than on the face of the Bill and encourage the Government to reconsider this omission. In particular, we suggest that the Bill should be amended to include express provisions on the matters currently covered by Clause 172(2)(d) to (g), as the exercise of the powers in relation to these issues has the capacity to seriously interfere with an individual's Convention rights. We recommend that the Bill set out an indicative list of the factors which would constitute a reasonable excuse for the purposes of Clause 170(1). Whilst the Government has told us that nuisance or disturbance caused by an individual suffering a mental or physical condition will prevent the commission of an offence or removal, it is unclear whether this would include behaviour due to an addiction (e.g. to drugs or alcohol). We propose to write to the Minister to seek clarification on this matter. (Paragraph 1.122: 5^th Report)

156.  Key safeguards limiting the use of the power of removal are set out on the face of the Bill, namely that the authorised officer cannot remove a person if he has reason to believe that the person to be removed requires medical advice, treatment or care or that removal would endanger the person's physical or mental health.

157.  The nature of the further provision we wish to make about the way the powers may be exercised will be comprehensive and will set out detailed examples, case studies and sample scenarios in which the powers can be used. Such further provision is thus not appropriate for inclusion on the face of the Bill and will be better dealt with in guidance. NHS bodies and authorised officers will be under a duty to have regard to the Guidance and we consider that this duty would ensure that important provisions, such as those relating to training and to the suitability of authorised officers, are adhered to.

158.  It is important that further provision of this nature is made in guidance so as to allow NHS bodies to exercise the powers in a way suitable to their premises. It is not the case that the power will be exercised in exactly the same manner across all NHS premises as the size and character of the premises will impact in some way upon how the power is exercised. Therefore making further provision in guidance about the exercise of the power will provide the flexibility to help NHS staff comprehend the aims and objectives of the offence and power, whilst understanding how they will exercise the power safely and with a full regard to the rights of the person being removed in a manner which suits both their own needs and available resources.

159.  Including express provisions of this nature in the Bill would restrict the flexibility for authorised officers to use their own expert judgement to determine if a person is committing or has committed an offence and can be removed from the premises. The situations in which a person can be suspected of committing an offence can be unique; therefore, there is a need to encourage authorised officers to be as objective as possible in their approach.

160.  By issuing guidance, there is the flexibility to allow NHS hospitals to consider a variety of grades and role of authorised officer taking the nature and size of their premises into account. There is also the ability to ensure the authorised officer has regard to the guidance but can make their own objective decision on whether to remove an offender based on the unique nature of the situation and consider, in such a situation, whether to use force to remove the person. Guidance allows detailed examples and scenarios in which the power in clause 118 can be used, whilst not restricting use of the power to a particular situation and having NHS staff believe they can only be used in a very limited set of scenarios.

161.  The guidance will comprehensively consider a wide range of rights the person who may be subject to the power of removal will have and would expect to be taken into account before the power of removal is exercised. NHS bodies and authorised officers will be under a duty to have regard to the guidance and would have to justify and decision to depart from it.

162.  Issuing comprehensive guidance which NHS bodies and authorised officers are under a duty to have regard to provides flexibility in the way the powers are exercised. This will meet the needs of each NHS premises, enable NHS bodies to tackle nuisance or disturbance behaviour objectively and ensure correct safeguards are in place.

163.  Paragraph 825 of the Bill's Explanatory Notes provides some examples of what may constitute a reasonable excuse for a person's nuisance or disturbance behaviour. Listing these or other examples on the face of the Bill would, however, again remove a degree of the flexibility and objectivity which the provisions require and may lead to the view amongst NHS bodies and authorised officers that only those matters appearing on the face of the Bill could constitute a reasonable excuse. For example, if an authorised officer believes that a person's nuisance or disturbance behaviour may be a result of a mental health problem and so constitute a reasonable excuse, then they should bring this to the attention of an appropriate mental health practitioner who will be able to make a more comprehensive assessment of the person. This process may differ slightly depending on the person's exact behaviour at the time or even if the authorised officer is already a mental health professional themselves, so including such an example on the face of the Bill would be unhelpful, as what would very much depend on the unique nature of the situation and would have to be documented in guidance.

164.  To clarify, a person will not be able to commit an offence under clause 117 nor be removed under clause 118 if the person has a reasonable excuse for their behaviour. This includes the suspicion that the person may be suffering from a mental health problem which is a causal factor in their behaviour. A person's 'physical condition' does not automatically prevent them from being able to commit an offence, unless the person is on the premises for the purpose of seeking medical advice, treatment or care for this physical condition or for any other reason. Simply possessing a physical condition, such as a disability, does not prevent a person from committing an offence if they cause a nuisance or disturbance without reasonable excuse, refuse to leave the premises without reasonable excuse and are not seeking medical advice, treatment or care for themselves.

165.  Behaviour consequential to an addiction to drugs and alcohol does not automatically qualify as a reasonable excuse for a person's nuisance or disturbance behaviour, although it could constitute a reasonable excuse depending on the circumstances of the case at hand. If a person causes a nuisance or disturbance as a consequence of an alcohol or drug addiction and is seeking medical advice, treatment or care at the time they are causing the nuisance or disturbance, then they will be unable to commit the offence and cannot be removed. This measure acts as a safeguard for such persons to enable them to access help and support for their addiction.

166.  It must be noted, however, that a key driver in developing these provisions was the high number of nuisance or disturbance cases resultant from a person suspected of being under the influence of alcohol or drugs. Respondents to the 2006 Department of Health consultation, 'Tackling nuisance or disturbance behaviour on NHS healthcare premises', spoke of such cases and under current law felt powerless to do anything about this themselves. This lack of action sometimes escalated to more serious offences such as assault against NHS staff.

167.  The Government believes the safeguard in clause 117(1)(c) helps to protect those who are addicted to drugs or alcohol whilst leaving those who are not seeking medical advice, treatment or care open to be able to commit the offence and possibly be removed if their nuisance or disturbance behaviour results from drinking alcohol or taking drugs.

168.  Whilst Clause 118(1)(c) seeks to ensure that those on NHS premises for the purposes of seeking medical attention receive that medical attention regardless of their behaviour, we consider that, for the sake of absolute clarity, it should be made explicit in guidance that even where the person's behaviour is due to drink or drugs, s/he must still be treated, if medical attention is required, and s/he cannot commit the offence, or be removed from the premises until such treatment has taken place. (Paragraph 2.47: 15^th Report)

169.  Whilst clause 117(1)(c) seeks to ensure that those on NHS premises for the purposes of seeking medical attention receive that medical attention regardless of their behaviour, we consider that, for the sake of absolute clarity, it should be made explicit in guidance that even where the person's behaviour is due to drink or drugs, he or she must still be treated, if medical attention is required, and he or she cannot commit the offence, or be removed from the premises until such treatment has taken place

170.  Clause 117(1)(c) will prevent anyone from committing an offence if, at the time of committing a nuisance or disturbance against an NHS staff member, they are seeking medical advice, treatment or care.

171.  Clause 118(4) will prevent an authorised officer from exercising the power to remove a person reasonably suspected of committing or having committed the offence where the officer has reason to believe that the person requires medical advice, treatment or care or removal would endanger the person's physical or mental health.

172.  The provisions in clauses 117(1)(c) and 118(4) are designed to ensure that, where anyone needs treatment advice or care, there are safeguards in place to ensure such treatment, care or advice will be provided. Addiction to drugs or alcohol will not exclude anyone from the operation of these safeguards.

173.  The Government acknowledges the need to ensure that NHS staff understand the legislation and the safeguards within it. Guidance issued under clause 119 will explain the operation of the legislation in detail. Potential scenarios covering various eventualities will be covered in guidance, including issues relating to drugs and alcohol.

Special Immigration Status

174.  We welcome the Government's clarification that the Secretary of State's designation of a person under clause 181 of the Bill would be unlawful if, in the opinion of a court, the effect of designation would breach the UK's obligations under the Refugee Convention. (Paragraph 1.125) We are concerned that this Part of the Bill gives rise to a further risk of breaches of the Refugee Convention by the UK and we recommend that the statutory construction of Article 1F of that Convention be repealed. (Paragraph 1.126: 5^th Report)

175.  The Government is pleased that our earlier clarification went some way towards reassuring the Committee. However, we do not believe that the statutory construction of Article 1F(c) contained in section 54 of the Immigration Asylum and Nationality Act 2006 either has, or is likely to have, the effect described by the Committee.

176.  As was made clear at the time, section 54 of the 2006 Act was declaratory in nature, and did not represent any change to the interpretation of Article 1F(c) of the Convention.

177.  The Government remains of the view that, where there are serious reasons for considering that a person has been guilty of committing, preparing or instigating terrorism, or of encouraging or inducing others to act in that way, he is rightly excluded from the protection which would otherwise be afforded him by the Refugee Convention.

178.  This view was endorsed by Parliament when passing the legislation less than 2 years ago, and we do not propose to repeal the section concerned.

Prohibition on industrial action by prison officers

179.  We consider that the duty on the State to ensure the safety and well-being of prisoners is a fairly compelling consideration capable in principle of justifying some restriction on the right of prison officers to take some forms of collective action to protect their interests. The question is whether the restrictions contained in the Bill are proportionate to the pursuit of that aim. (Paragraph 1.130) First, why is it necessary, in order to protect the welfare of prisoners, to prohibit all forms of industrial action by prison officers rather than just strike action? Second, has the point of last resort been reached, or is there still a possibility that a voluntary agreement with the Prison Officers Association could be reached? We will write to the Minister in relation to these points and may return to the matter in a future report. (Paragraph 1.131: 5^th Report)

180.  The provisions engage Articles 10 and 11 of the ECHR as they restrict the ability of prison officers to take industrial action. However, those rights do not guarantee the right to take such action and it is well established that the rights of essential workers (such as prison officers) can be restricted provided that this is done in a measured and proportionate manner. The rights of prison officers to take industrial action must be weighed against the need to ensure the safety of prisoners, other staff and the public.

181.  The key factor in this consideration must be the risk of harm should different types of industrial action by prison officers be permitted, including instances of work to rule and the withdrawal of goodwill. The Government's position is that any type of industrial action that disrupts a prison regime introduces an element of instability which increases the risk of harm, whether to prisoners, other staff, or members of the public. Action short of strike action would:

• limit the ability to provide the most fundamental amenities for the prisoners in our care, such as food and medication;
• undermine the wider operation of the criminal justice system in which the timely and efficient transfer of prisoners to and from courts is essential; and,
• compromise the work of third party providers including the NHS, who we rely on to deliver key elements of our offender management programmes.

182.  Collectively, this would rapidly destabilise the prison estate and the wider Criminal Justice System and has the potential to incite prisoner unrest - creating a volatile environment and putting the safety of prisoners, staff and the wider public at risk.

183.  On the possibility of reaching a voluntary agreement, the POA special delegates' conference on 19 February 2008 voted overwhelmingly in favour of a motion not to accept any agreement containing a no-strike provision. In these circumstances, it is extremely unlikely that any such agreement will be reached in the foreseeable future. It is not the Secretary of State's intention to suspend the statutory restrictions on industrial action until such an agreement is in place.

184.  Although a prohibition on industrial action short of strike action is capable of being a justified restriction on the right to freedom of association of prison officers, the extent of the prohibition currently proposed in the Bill, which includes any action likely to affect the normal working of a prison, is disproportionate. We recommend that the Bill be amended by deleting the reference to action likely to affect the normal working of a prison and replacing it with "action likely to put the safety of prisoners, staff or the public at risk." (Paragraph 2.57:15^th Report)

185.  The Government welcomes the Committee's finding that it is justifiable to restrict action short of strike action provided the restriction can be shown to be both necessary and proportionate. The "affect the normal working of a prison" wording reflects the legally binding agreement in force since 2005, and has satisfactorily addressed safety issues without any unjustified infringement of prison officers' rights. In the Government's view, any type of industrial action that disrupts a prison regime introduces an element of instability which increases the risk of harm, whether to prisoners, other staff, or members of the public.

186.  However, the Government recognises the Committee's concerns that any definition enshrined in statute should refer explicitly to the overriding issue of safety, rather than the proxy of the "normal working of a prison". Accordingly, the Government accepts the Committee's recommendation in principle, notes the amendment tabled for Lords Report by the Earl of Onslow to implement that recommendation and has tabled amendments for Lords Third Reading to incorporate it into the Bill, subject to minor drafting changes (relating principally to clarification of the terms "staff" and "the public").

Disclosure of convictions of sex offenders

187.  We share the concerns about the potentially negative consequences of disclosing convictions of sex offenders, which appear to us to have the potential to undermine the overall intention of the new Clause, namely child protection. We recommend that guidance make clear that authorities must consider whether disclosure would indirectly identify the victim(s) of a sex offender. (Paragraph 2.63:15^th Report)

188.  Current practice in relation to disclosure is expected to take account of all relevant factors and involves all relevant agencies, including social services. Therefore, in practice, the risk of identifying a victim through disclosing an offender's details and any steps that may be necessary to mitigate this risk are issues that should be thoroughly considered.

189.  However, the Government recognises the particular importance of ensuring that the process of disclosure does not have an adverse impact on victims and accepts the Committee's recommendation to amend the guidance so that MAPPA responsible authorities will explicitly be required to consider the risk of identifying a victim when making a disclosure.

190.  Whilst we accept that civil or criminal remedies could provide limited redress against impermissible disclosure, including for breach of Article 8 ECHR, at that point the damage to an individual's privacy, and to his or her family and home life, would have been done. We recommend that there be a presumption in favour of notifying an individual in advance that the authorities intend to make a disclosure and provide an opportunity for an individual to make representations as to whether or not the disclosure should take place, and the manner in which it would be made. (Paragraph 2.64:15^th Report)

191.  The involvement of the offender in the process of disclosure is identified in guidance as an important element of good practice that should be considered wherever possible. In most cases an offender is informed in advance of disclosure and the disclosure is made in co-operation with the offender, sometimes by the offender himself in the presence of their offender manager or a police officer. We expect this practice to continue, where appropriate. In these cases, offenders are able to raise arguments with the MAPPA authorities or indeed to seek an injunction preventing disclosure before any interference with the offender's right to family life occurs.

192.  We do not believe that it would be advantageous to introduce a statutory presumption in favour of informing the offender prior to disclosure. The current system under which the guidance encourages MAPPA authorities to inform the offender works effectively and we do not consider that there is a need to limit the MAPPA authorities' discretion in this way, on the face of the legislation, given that they will in any event be bound to follow the statutory guidance and act in accordance with Article 8.

193.  There may be cases where it is not appropriate to inform an offender in advance that a disclosure will take place or where the need to act urgently to protect a child or children could be hindered by a statutory presumption such as you suggest, thereby endangering the particular child or children in that case. We believe MAPPA are best placed to judge on a case by case basis the degree of involvement of the offender in the disclosure process.

19   F Leverick, "Is English Self-Defence Law Compatible with Article 2 of the ECHR?", [2002] Crim LR 347. Back